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Same-sex marriage 'a constitutional minefield'

A constitutional law expert says the ACT's bill on same-sex marriage could be safe from any inconsistencies with the Federal Marriage Act.

Prime Minister Tony Abbott is seeking legal advice after the ACT Government introduced a bill to legalise same sex marriage.

Professor George Williams from the University of New South Wales says the ACT has the authority to pass the law, but says it is unclear whether the law would be inconsistent with the Federal Marriage Act.

"The whole issue of same-sex marriage is a constitutional minefield," he said.

"There's a lot of uncertainty, because we've got a constitution drafted in 1901 and of course the framers didn't really anticipate this sort of issue.

"It's being worked out against a very old framework."

But Professor Williams says the word marriage could be interpreted for what it meant in 1901 when it was put in the constitution.

"If they took that originalist view, it's quite possible [it would be safe]," he said.

"High Court judges have hinted at the fact that they might even decide that the Commonwealth marriage power is only for heterosexual marriage and in that case only the territories and the states could regulate same-sex marriage.

"The ACT law I think would likely be safe from any inconsistency."

Jervis Bay

But same-sex marriage legislation introduced in the ACT may not be allowed to exist in Jervis Bay.

Under the Commonwealth's Jervis Bay Acceptance Act, laws introduced in the ACT generally apply automatically in Jervis Bay, but only at the discretion of the Federal Government.

ACT Attorney-General Simon Corbell says the Commonwealth can chose to revoke the law from Jervis Bay if they do not deem it to be suitable.

"The ACT Courts have jurisdiction in the Jervis Bay Territory and they deal with any criminal or any other matters that may arise in Jervis Bay," Mr Corbell said.

"But decision about which ACT laws apply is a matter for the Federal Government.